RELIST WATCH

Required SEC disclosures and erroneous DNA evidence

The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court worked through two thirds of last week’s new relists, though with very different results. The court granted review in Delligatti v. United States, meaning that the court will be making yet another foray into the “categorical approach” to determining whether prior convictions are “crimes of violence” for sentencing purposes. Justin Granier did not fare so well; the court declined to take his case asking whether courts can infer juror bias from the circumstances surrounding the case. But aside from one grant and one denial, the rest of the relists are returning for another week.

There are two newly relisted cases this week, one civil and one criminal.

First, the civil one. Facebook v. Amalgamated Bank involves a private securities-fraud class action arising out of Cambridge Analytica’s wrongful acquisition and misuse of Facebook user data. The plaintiffs in the case, shareholders in Facebook, allege that the company defrauded them by its description of “risk factors” in their annual Form 10-K and quarterly Form 10-Q filings. Facebook warned investors that if third parties improperly accessed or disclosed user data, Facebook could suffer business harm.

The shareholders alleged that those statements were false because they framed the risk as hypothetical, but Cambridge Analytica had already misused data at that point. The district court dismissed the shareholders’ claims, concluding that they had failed to plead falsity, knowledge of wrongdoing, and loss causation under the elevated standard of Federal Rule of Civil Procedure 9(b), which requires that “a party must state with particularity the circumstances constituting fraud or mistake.”

But the U.S. Court of Appeals for the 9th Circuit reversed, over the partial dissent of Judge Patrick Bumatay. It revived the shareholders’ claims in relevant part, concluding that a plausible claim had been made that Facebook’s statement of “risk factors” was fraudulent and that the shareholders had adequately pleaded it.

Facebook now petitions for review, supported by “friend of the court” briefs from law professors and former Securities and Exchange Commission officials, by the Chamber of Commerce and other industry groups, and by the Washington Legal Foundation. It contends that this case implicates divisions among the federal courts of appeals on two issues: the first on what kinds of risk disclosures public companies must make in their public reports; and the second on whether loss causation allegations are subject to heightened pleading standards under Rule 9(b), or whether ordinary notice pleading under Rule 8 suffices. The shareholders argue in opposing cert that neither issue is before the court, that Facebook’s statements to the contrary are “based on a serious mischaracterization of the decision below and the facts,” and that the case is a “surpassingly bad vehicle” for addressing those questions in any event.

Our next relist is making its second appearance in this column. It’s an unusual criminal petition in that the prosecution also thinks the defendant’s conviction should be reversed.

Areli Escobar was convicted in Texas state court of the sexual assault and murder of Biana Maldonado Hernandez and sentenced to death. The prosecution’s case against Escobar relied heavily on DNA evidence. But after Escobar’s conviction, Texas discovered serious problems in the laboratory that conducted the DNA test, leading it to close the facility permanently.

On Escobar’s application for post-conviction relief, the state trial court found that the DNA evidence used to convict him was false, misleading, unreliable, and material to his conviction. Thus, the court recommended that Escobar be granted relief on his federal due process claim. Although the state initially opposed habeas relief, it changed its position when the case reached the Texas Court of Criminal Appeals; it agreed that Escobar’s federal due process rights had been violated and that he was entitled to have his capital conviction overturned.

The court of criminal appeals nonetheless denied relief, holding that Escobar’s federal due process rights were not violated because he had failed to show any reasonable likelihood that the false DNA evidence could have affected the jury’s judgment. The court did not acknowledge the state’s contrary view.

During the case’s first trip to the Supreme Court, Escobar argued that the Texas Court of Criminal Appeals erred in affirming his sentence based on its conclusion that there is no reasonable likelihood that the false DNA evidence could have affected the judgment of the jury. Travis County District Attorney José Garza supported that request, arguing that the DNA evidence was “inaccurate and misleading” and urging the justices to “summarily reverse.” After considering the case at seven conferences, and without seeking additional briefing or oral argument, the Supreme Court threw out the state court’s decision and sent the case back for another look “in light of the confession of error by Texas in its brief.”

When the case returned to the state court, the court of criminal appeals again denied relief, explaining that the state’s position on certiorari “add[s] nothing to what we were already aware of when we [previously] denied relief.” It still concluded that Escobar failed to show a due process violation and that the “evidence that has been shown to be false is not material because there is no reasonable likelihood that the outcome would have changed if the false evidence had been replaced with accurate evidence.”

Now before the Supreme Court a second time, Escobar argues first that his case “presents the same question as Glossip v. Oklahoma,” which is now being briefed for argument in the fall. There, the third question presented is “whether due process of law requires reversal, where a capital conviction is so infected with errors that the state no longer seeks to defend it.” Escobar notes that although Justice Neil Gorsuch has recused himself in Glossip, the full court could hear his case, suggesting that this case is a better vehicle. (It’s not uncommon for the court to grant review in a second case on a similar question when one of the justices is recused from the first case.)

Escobar also argues that the Texas court only gave lip service to the Supreme Court’s GVR order, arguing that the lower court frustrated the state’s ability to explain why it no longer would defend the conviction by limiting supplemental briefing.

Lastly, Escobar argues that contrary to the state court’s conclusion, the use of the false DNA evidence at trial violated his right to due process because it was material to the guilty verdict. Escobar is supported by “friend of the court” briefs filed by the American Bar Association and former state attorneys general and other prosecutors. And once again, Garza, the Travis County district attorney, has filed a brief supporting the petition. But Texas Attorney General Ken Paxton, representing the Correctional Institutions Division of the Texas Department of Criminal Justice, has filed a brief opposing relief, arguing that the case is “fact-bound, procedurally flawed, and Texas-law-focused.”

Before we end this week’s installment, we have one very efficient disclosure to make: Tom Goldstein, the publisher of SCOTUSblog, represented the shareholders in Facebook v. Amalgamated Bank and represents Areli Escobar. I have had no role in either case.

We’ll know more soon. Until next time!

New Relists

Escobar v. Texas, 23-934
Issues: (1) Whether due process of law requires reversal, where a capital conviction is so infected with errors that the state no longer seeks to defend it; (2) whether the Texas Court of Criminal Appeals erred in holding there was no due process violation because there is “no reasonable likelihood” that the prosecution’s use of admittedly false, misleading, and unreliable DNA evidence to secure petitioner’s capital conviction could have affected any juror’s judgment.
(relisted after the May 30 conference)

Facebook v. Amalgamated Bank, 23-980
Issues: (1) Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm; (2) whether Federal Rule 8 or Rule 9(b) supplies the proper pleading standard for loss causation in a private securities-fraud action.
(relisted after the May 30 conference)

Returning Relists 

Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26, May 9, May 16, May 23 and May 30 conferences)

L.W. v. Skrmetti, 23-466
Issues: (1) Whether Tennessee’s Senate Bill 1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the 14th Amendment’s equal protection clause; and (2) whether Senate Bill 1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the 14th Amendment’s due process clause.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23 and May 30 conferences)

United States v. Skrmetti, 23-477
Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23 and May 30 conferences)

Jane Doe 1 v. Kentucky ex rel. Coleman, Attorney General, 23-492
Issues: (1) Whether, under the 14th Amendment’s due process clause, Kentucky Revised Statutes Section 311.372(2), which bans medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex,” should be subjected to heightened scrutiny because it burdens parents’ right to direct the medical treatment of their children; (2) whether, under the 14th Amendment’s equal protection clause, § 311.372(2) should be subjected to heightened scrutiny because it classifies on the basis of sex and transgender status; and (3) whether petitioners are likely to show that § 311.372(2) does not satisfy heightened scrutiny.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23 and May 30 conferences)

Harrel v. Raoul, 23-877
Issues: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes; (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes; and (3) whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.
(relisted after the May 16, May 23 and May 30 conferences)

Herrera v. Raoul, 23-878
Issues: (1) Whether semiautomatic rifles and standard handgun and rifle magazines do not count as “Arms” within the ordinary meaning of the Second Amendment’s plain text; and (2) whether there is a broad historical tradition of states banning protected arms and standard magazines from law-abiding citizens’ homes.
(relisted after the May 16, May 23 and May 30 conferences)

Barnett v. Raoul, 23-879
Issue: Whether Illinois’ sweeping ban on common and long-lawful arms violates the Second Amendment.
(relisted after the May 16, May 23 and May 30 conferences) 

National Association for Gun Rights v. City of Naperville, Illinois, 23-880
Issues: (1) Whether the state of Illinois’ ban of certain handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorically unconstitutional; (2) whether the “in common use” test announced in Heller is hopelessly circular and therefore unworkable; and (3) whether the government can ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding-era regulation.
(relisted after the May 16, May 23 and May 30 conferences)

Langley v. Kelly, 23-944
Issues: (1) Whether the state of Illinois’ absolute ban of certain commonly owned semi-automatic handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorially unconstitutional; (2) whether the state of Illinois’ absolute ban of all commonly owned semi-automatic handgun magazines over 15 rounds is constitutional in light of the holding in Heller that handgun bans are categorially unconstitutional; and (3) whether the government can ban the sale, purchase, possession, and carriage of certain commonly owned semi-automatic rifles, pistols, shotguns, and standard-capacity firearm magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by Heller and New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
(relisted after the May 16, May 23 and May 30 conferences )

Gun Owners of America, Inc. v. Raoul, 23-1010
Issue: Whether Illinois’ categorical ban on millions of the most commonly owned firearms and ammunition magazines in the nation, including the AR-15 rifle, violates the Second Amendment.
(relisted after the May 16, May 23 and May 30 conferences)

Advocate Christ Medical Center v. Becerra, 23-715
Issue: Whether the phrase “entitled … to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
(relisted after the May 23, 2024 and May 30 conferences)